McDonald and Choudhary

FAMILY COURT OF AUSTRALIA

MCDONALD & CHOUDHARY

[2017] FamCA 214

FAMILY LAW – CHILDREN – With whom the children live – Best interests of the children – allegations of physical, verbal, emotional and psychological abuse of the mother and children by the father – allegations of sexual abuse of a child by the father – whether there is an unacceptable risk of abuse – finding on balance of probabilities no unacceptable risk of harm to the children by the father – finding of involvement of the children in the mother’s narrative of abuse – finding that children at risk of significant psychological and emotional abuse in mother’s care – benefit to the children of having a meaningful relationship with the father and mother considered – final orders made that the father have sole parental responsibility for the children and that the mother spend no time nor communicate with the children for a period of three months.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Convention of 25 October 1980 on the Civil Aspects of International Child Abduction

Harridge and Anor & Harridge and Anor [2010] FamCA 445
M v M (1988) 166 CLR 69
Mazorski & Albright (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404

APPLICANT:

Ms McDonald

RESPONDENT:

Mr Choudhary

INDEPENDENT CHILDREN’S LAWYER:

Hartleys Lawyers

FILE NUMBER:

MLC

7639

2014

DATE DELIVERED:

7 April 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

26, 27, 28 & 29 September 13 & 14 October, 10, 11, 15 & 25 November 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Jenkinson

SOLICITOR FOR THE RESPONDENT:

Danielle Webb Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Dosanjh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hartleys Lawyers

Orders

All previous parenting orders be discharged.
The father have sole parental responsibility for the children B born … 2008 and C born … 2010.
The father notify the mother in writing as soon as practicable after making any decision in relation to major long term issues including but not limited to:
(i) the children’s education;
(ii) the children’s religious and cultural upbringing; and
(iii) the children’s health.
The children live with the father.
For a period of three calendar months from the date of these orders the mother be and is hereby restrained from spending time and/or communicating with or attempting to spend time and/or attempting to communicate with the children.
Commencing three calendar months from the date of these orders the children spend supervised time with the mother at F Contact Centre at days and times that can be accommodated by the Contact Centre.
Forthwith the parties do all acts and things and sign all necessary documents to register for and be placed upon the waiting list at F Contact Centre.
As soon as practicable the Independent Children’s Lawyer in consultation with the family consultant, Ms D, recommend a psychologist or counsellor to the mother for the purposes of her engaging in therapy and/or counselling to address the issues identified by Ms D in the Child Inclusive Conference Memorandum to Court, her two family reports and the Reasons for Judgment published this day (“the issues”).
The mother forthwith advise and keep the Independent Children’s Lawyer advised and, in the event that the Independent Children’s Lawyer has been discharged, the father, as to the name of any psychologist or counsellor engaged by the mother for the purposes of addressing the issues.
The Independent Children’s Lawyer or the father if the Independent Children’s Lawyer has been discharged, be at liberty to provide copies of the Child Inclusive Conference Memorandum to Court, the two family reports, the orders made this day and the Reasons for Judgment to any psychologist or counsellor engaged by the mother.
The mother have liberty to apply for the children to spend unsupervised time with her subject to her engagement with a psychologist or counsellor as recommended by the Independent Children’s Lawyer in consultation with Ms D or such other psychologist or counsellor as may be engaged by the mother and such application to be made by way of an application in a case and an affidavit setting out the steps the mother has taken, if any, to address the issues, together with the evidence of her treating psychologist or counsellor as to the mother having addressed the issues and his or her recommendations, if any, as to the children spending time, including unsupervised time, with the mother.
Until further order the mother be restrained from attending or seeking employment near the children’s school.
The father do all acts and things and sign all necessary documents to authorise the Principal of any schools the children attend or may attend to provide the mother with copies of the children’s school reports.
Paragraphs 1 and 2 of the orders made by Judge Whelan dated 10 February 2015 be discharged AND THE COURT REQUESTS THAT the Australian Federal Police remove the names of the children B born … 2008 and C born … 2010 from the Airport Watch List at all points of international arrivals and departures in Australia.
As soon as practicable the Court forward a copy of this order to the Australian Federal Police.
The father be at liberty to travel overseas with the children during school holidays upon providing the mother with 21 days’ notice of the intended travel, an itinerary and contact details for the children whilst overseas.
The appointment of the Independent Children’s Lawyer be discharged as and from 6 October 2017.
All extant applications be otherwise dismissed, save and except with respect to any application for costs, and removed from the list of cases awaiting hearing.

IT IS DIRECTED THAT

All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDonald & Choudhary has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7639 of 2014

Ms McDonald

Applicant

And

Mr Choudhary

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

In her report dated 25 August 2016 Ms D, the family consultant, who has assessed this family on three occasions spanning an 18 month period, concluded that “it is clear that the children cannot have both parents concurrently involved in their lives at this point in time.”
Pivotal to this case is what is described by Ms D as the noticeable change in the children’s presentation over that 18 month period and in particular the deterioration in the children’s relationship with their father. Although in her Memorandum to the Court following the child inclusive conference on 12 February 2015 Ms D observed what she described as “a very warm and loving exchange that was mutual” between the father and the children, by the time she interviewed the children on 8 August 2016 she said “both children spoke negatively, with a level of harshness that was difficult to balance with the previous presentations” and “did and said things that could be considered to be blatantly rude”. She also said that “it was also evident that there was a re scripting of the children’s experience of their father.”
The difficulty the Court faces in this case is that the parties each have diametrically opposed views as to the reasons for these changes in the children’s presentation and what is ultimately in their children’s best interests.
The Court is faced with a stark choice between the father’s version of events, where he alleges that he has been comprehensively removed from the children’s lives based upon false allegations made by the mother and the mother’s version that the father is a violent and abusive man who has deliberately abused the children physically, emotionally and in B’s case, sexually.
Although the mother now proposes that the children should spend some time with the father, that is in circumstances where there is a history of the children not attending supervised visits with the father and the mother either not being able to make the children attend or not wanting them to.
The mother commenced her final address as follows
I remain firm in my view that abuse has happened to [B] and [C] by their father. Over the years I have witnessed the father hurt the children physically, such as biting, pinching and pushing the children in anger to the ground, [B] in particular. I have seen the father yell in [B’s] face repeatedly when she was a baby and put her in unsafe places just to antagonise her and because he thought it was a fun thing to do. I have seen him angrily jab pencils in her legs, because he was angry at her, yelling at her repeatedly saying “how does it feel, how does it feel”? I have seen him push the children when they were younger off the bed onto the floor repeatedly, one time so hard that they rolled along the floor and into the doorframe. I have also witnessed the father pushing [B] onto the floor while she was standing. I have seen and heard the father yell at the children and emotionally abuse them by putting them down, threatening and frightening them by getting the children to do what he wants, such as telling the children that the man outside will come and hurt daddy if you do not go to sleep right now…There is also a history of the children telling me that their dad has hurt them. I have seen bite marks on [C’s] arm and I have seen [B] come to me holding her lip telling me that her dad has bitten her to the point it was bleeding. When the children were younger the children were repeatedly telling me that their father had hurt them.
It is these allegations of abuse that lie at the heart of this case and in particular the mother’s unshaken view that the children are at risk of abuse in the father’s care. The father not only denies this, but says the children will be exposed to significant emotional and psychological risk if left in the mother’s care.

Background

The father is 34 years of age and is a qualified professional. He has just started in a new job which he says will allow him the flexibility to care for the children in the event that orders are made for the children to live with him. The mother is 44 years of age and is also qualified professional. Although she is not currently in employment, she says primarily because of the demands of the litigation, she is proposing and will be required, as she is in receipt of Newstart allowance, to seek employment in the near future.
The father and mother in this case met in or about March 2007. Although it was a serious relationship, they did not move in together until after the birth of their first child B who was born in 2008 (now eight years of age). They separated in or about January 2010 prior to the birth of their second child C who was born in the middle of 2010 (now six years of age). The mother’s case is that she and the father were separated for a period of approximately eight months between February and October 2010. Although there are differences in the evidence of the father and the mother in relation to the dates of separation I am satisfied that this appears to be a matter of how they would each describe their relationship, rather than going to the credit of either of them.
According to the father following their separation in or about January 2010 they continued to spend time together initially at the home of the maternal grandmother, where the mother was living with B and thereafter at the property rented by the father which he vacated when he said the mother was forced to leave the maternal grandmother’s home. During this period the father spent time with both the mother and the children, including a family holiday in Perth, and although the mother disputes his level of involvement in their care, she does not dispute that she did on occasions leave the children in his care.
In August 2011 the owners of the property in Suburb G, in which the mother and the children were living, decided to sell the property. The father’s evidence is that as the mother, being a single mother with two young children, was having difficulty finding a property to rent, he agreed to rent a property in his name. The mother and the children moved into that property and the father continued to spend time with the children on a regular and frequent basis, albeit the mother would not allow them to stay overnight with the father.
Although the father and mother agree they did not resume an intimate relationship it was common ground that they were considering reconciliation during this period.
In December 2012 the father, mother and the children travelled to India for the father’s brother’s wedding. Although it is the father’s evidence that the mother was initially anxious about travelling to India, it is common ground that they all enjoyed the trip to India.
In August 2013 the father’s parents travelled to Australia and stayed with the mother and the children. The father says that they were unaware that he and the mother had separated and the father hid the fact that he was not living with the mother and the children from them. His evidence was that the mother was not happy about the father’s parents staying with her.
The father describes an incident during this period when he says C fell off the couch but told the mother that the father had made him fall and as a result, the mother started shouting at him in front of his parents accusing him of being a bad father. He said that although he tried to explain to the mother what had actually occurred, she would not listen.
Following an argument in September 2013 in relation to a party the mother arranged for B’s birthday, the father says the mother became angry with his parents, telling them that if they came back she would call the police. Although the father made arrangements for his parents to stay at a motel for the remainder of their visit they remained at the mother’s home after she went to stay at her mother’s home.
In November 2013 the father and mother finally ended their relationship. The father says he continued to spend time with the children each weekend and during the week but the mother refused to allow the children to spend time with him at his home, stay with him overnight or allow him to pick them up from school or kindergarten. Although the parties do not agree on the detail, they do agree that the father continued to spend time with the children on an unsupervised basis until he travelled to India in late 2014.
The father says that upon his return from India the mother refused to allow the children to spend time with him and there is no dispute that the children did not see the father (other than during the appointments with Ms D for the purposes of the preparation of the Child Inclusive Conference Memorandum to Court dated 16 February 2015 pursuant to s 11F of the Family Law Act 1975 (Cth)) until after orders were made by Judge Whelan on 12 February 2015, a period of almost four months.
Judge Whelan made orders by consent that until further order the father and mother have equal shared parental responsibility for the children, that the children live with the mother and that the children spend time with the father from 12.30 pm to 4.30 pm each Saturday. The children’s time with the father pursuant to those orders was to be unsupervised time. Her Honour further ordered not by consent that in addition to the time as agreed in the Minute of Consent Orders, the children spend from 3.30 pm to 6.00 pm each Wednesday with the father and commencing on 12 May 2015, the children spend time with the father from 12.30 pm each Saturday until 10.00 am on Sunday. This was similarly to be unsupervised time.

Material Relied Upon

Although the mother in her Outline of Case sought to rely upon affidavits previously filed by her or on her behalf, ultimately I permitted her to rely upon her affidavits filed in accordance with my trial orders made 5 May 2016 and particular paragraphs of her previous affidavits. Specifically, the mother was permitted to rely upon:
·her Affidavit (sworn 15 July 2016) filed 20 July 2016 (“the mother’s Trial Affidavit”);
·her Affidavit filed 16 September 2016 (“the mother’s Reply Affidavit”);
·Paragraph 46(b) of her Affidavit filed 26 November 2014;
·Paragraph 111 of her Affidavit (sworn 19 July 2016) filed 20 July 2015;
·Paragraph 25 of her Affidavit filed 22 February 2016.
The mother also relied upon the Affidavit of Dr H filed 1 September 2016.
The father relied upon the following material:
·his Affidavit filed 9 September 2016 (“the father’s Trial Affidavit”)
The Independent Children’s Lawyer relied upon the following material:
·Child Inclusive Conference Memorandum to Court by the Family Consultant dated 16 February 2015 (“Memorandum to Court”);
·Family Report dated 18 June 2015 (“the first family report”);
·Dr I’s psychiatric assessment of the mother dated 4 November 2015;
·Dr I’s psychiatric assessment of the father dated 5 November 2015;
·F Contact Centre Report dated 10 February 2016;
·Independent Children’s Lawyer’s Case Outline dated 27 April 2016;
·Reasons for Judgment dated 5 May 2016;
·Affidavit of Dr J filed 22 July 2016;
·Affidavit of Ms K sworn 23 August 2016;
·Family Report dated 25 August 2016 (“the second family report”).
The father also relied upon the evidence which the Independent Children’s Lawyer relied. The father, the mother and the Independent Children’s Lawyer also tendered various documents produced pursuant to subpoena during the course of the hearing.
Neither the father nor the mother required Dr I for cross examination.
The father and the mother and the Independent Children’s Lawyer each filed an Outline of their respective cases.

The Evidence

The standard of proof is the balance of probabilities. Whilst not limiting the matters the Court may consider in applying that standard, the Court must consider the nature of the cause of action, the nature of the subject matter of the proceedings and the gravity of the matters alleged.
In circumstances where the Court is being asked to make parenting orders, the paramount consideration is the best interests of the children the subject of the proceedings. In determining their best interests, the Court is being asked to make findings of the most serious kind. There are in this case serious allegations made by the mother of verbal, physical, sexual, psychological and emotional abuse by the father. On the other hand, the father alleges that the children have been subjected to serious psychological and emotional abuse by the mother as a result of what is either her genuine but misguided belief that the children are at risk in the father’s care or a deliberate attempt on her part to exclude the father from the children’s lives.
On 5 May 2016, I made orders applying the rules of evidence. Although the mother was on notice as to the need for the evidence in her trial affidavits to comply with the rules of evidence, she did not do so. However, in circumstances where the mother was unrepresented, both counsel for the father and the Independent Children’s Lawyer took what I consider to be a pragmatic and sensible approach and there were very few objections to the mother’s evidence. Notwithstanding that to be the case, having regard to the seriousness of the allegations and the subject matter of the proceedings, I have been mindful in assessing the evidence and the weight to be given to evidence that does not strictly comply with those rules.

On 5 May 2016 I also ordered that the mother be treated as the applicant for the purposes of the final hearing in circumstances where I was satisfied that although the parties each made allegations against each other, the starting point was, in my view, the allegations of abuse made by the mother. The matter proceeded on that basis.
The father and the mother were both cross-examined at length, as was the family consultant Ms D. Dr J who prepared a psychosexual assessment of the father and Ms E, a protective worker with the Department of Health and Human Services (“the Department”) were also cross examined, but on a more limited basis.
The father was an impressive witness. Although he was both distressed and at times appeared shocked by the circumstances in which he and the children now find themselves, he was surprisingly calm and courteous. This is notwithstanding it was clear that he found the mother’s allegations extremely distasteful and distressing. Having observed the father in the witness box, I am satisfied that he was genuinely concerned for the welfare of his children. As counsel for the father submitted, the father’s body language, facial expressions and his emotional reactions were entirely consistent with the subject matter of the questions he was being asked. The father addressed the questions he was asked promptly and directly and I am satisfied that he was doing his best to answer those questions truthfully.
Ms D described the mother’s presentation in her interview with her for the first family report as “defensive and somewhat hostile…showed almost no emotion when she spoke and also presented her views in a very black and white way…She therefore presents as highly anxious…” When interviewed for the second family report Ms D said of the mother that “...there was some contrast in [Ms McDonald’s] presentation at this assessment; while at the past two she had presented as more defensive, at this one she appeared and reported feeling more wearied by the Court process.” The mother’s presentation before me was at times quite flat and unemotional, particularly so given the nature and seriousness of the allegations she was making. At times both during her evidence and when conducting the case generally she also appeared quite anxious. However in my view this anxiety did not prevent her from being able to adequately present her case.
The Independent Children’s Lawyer submitted that I should accept that the mother now genuinely believes that the father has verbally, emotionally and physically abused her and the children both during the relationship and since she and the father separated and that he has sexually abused B. It does not however follow that because the mother believes this to be true that I can have confidence in her evidence. It is also necessary to assess the basis of the mother’s belief.
Counsel for the father submitted that the mother attempted to tailor her evidence to fit her belief and her case that she and the children have been abused, ignoring and minimising any evidence that did not fit with that belief. She relied upon the evidence which she perceived to be supportive of her case and when that failed, reverted to general statements based upon her understanding of articles she had read that said children do not lie about abuse, that abused children often love and want to be with their abuser and ultimately that she believes what her children tell her.
Although in cross examination the mother acknowledged that C does not always tell the truth, she had difficulty making the same concession with respect to B. It was the mother’s case that B should be believed, even in the face of independent evidence contradicting what the mother said B had told her. One example was her evidence in relation to what she said B had told her about the father having deliberately pushed her over during supervised time. When the mother was faced with what the child’s psychologist Dr L reported to Dr I about B not always telling the truth, the mother attempted to explain it away on the basis that B had been talking about play not about the abuse and that she had only been six years old at the time.
As previously referred to Ms D described the mother as having presented her views in a “very black and white way.” When cross-examined by counsel for the father, Ms D elaborated and explained that the mother lacks the capacity to reflect on any alternate possibility or hear any alternative view. It is clear from the mother’s evidence and I am satisfied, that she has no capacity to reflect upon information or evidence that does not fit with her case. For example, she could not reflect on the evidence of what the children reported to the Department, the Sexual Offences and Child Abuse Investigation Team (“SOCIT”) and Ms D which did not accord with her allegations of abuse. Significantly for the purposes of the matters I must determine, I am satisfied this is a narrative she has embraced since the father instituted proceedings with a view to the children spending overnight time with him.
The mother said during her evidence “I believe with my whole heart and being that I am right. I cannot be persuaded to think of it differently.” Accepting that is how the mother feels, and in circumstances where she has not demonstrated any real capacity to analyse the truth or otherwise of what the children tell her or what she perceives they are telling her or evidence that might suggest another possibility, I am satisfied that I can place little reliance upon her evidence. In all of the circumstances, I have much greater confidence in the father’s evidence and where there is a dispute between his evidence and the mother’s evidence, I prefer the father’s evidence.

Ms E’s evidence

The mother subpoenaed Ms E, a protective worker with the Department, to give evidence. Ms E is the protective worker who opened the file after the mother reported that B had disclosed to her that she had been sexually abused by the father. As Ms E was required to give evidence in another case and was only available on Monday, she gave her evidence after the mother had opened her case but before the mother had given her evidence and been cross-examined. Although strictly speaking Ms E was the mother’s witness, I allowed the mother to cross-examine her. Counsel for the father and the Independent Children’s Lawyer did not oppose me adopting this course.
It was clear from the mother’s questions that her purpose in cross-examining Ms E was firstly to establish that she had been biased against the mother, that the mother had not, as reported by Ms E, cancelled B’s appointment at the M Medical Service (“MMS”), that the allegations of abuse had not been fully investigated by the Department and finally to establish that even though Ms E said there was no evidence other than what the mother said the children had told her to substantiate her claims, that Ms E could not rule out the possibility that the children, and in particular B, had been abused by the father.
Ms E was a careful and considered witness. I am satisfied that she did her best to answer the questions she was asked honestly and notwithstanding that it was clear from the questions she was asked by the mother that the mother was critical of her. In my view, Ms E did her best not to let that influence her answers and was able to make concessions when it was appropriate to do so. Where there is a dispute between her evidence and the mother’s evidence I prefer Ms E’s evidence. Even if, as submitted by the mother, it is not correct that the mother cancelled B’s appointment with MMS, that would not lead me to conclude that I should not otherwise accept Ms E’s evidence nor is it a matter pivotal to the determination I must make.

Dr J’s Evidence

The mother also cross-examined Dr J. The focus of the mother’s cross-examination was, as readily conceded by Dr J, that he could not rule out the possibility that the father had sexually abused B. Whilst Dr J agreed with that proposition, he also did not resile from his opinion that the risk of the father sexually offending was low and I accept his evidence.

Ms D’s Evidence

Ms D was cross-examined by counsel for the father, the mother and the Independent Children’s Lawyer. The mother’s cross-examination, as it was with Dr J, seemed to be focussed on establishing that Ms D could not rule out the possibility that the children had been physically, emotionally and in B’s case, sexually abused by the father and/or that the children might at some future date make further disclosures about what she believed the father had previously done to them. In this regard, the mother placed significant weight upon what B had said to Dr H when she saw her in 2016 and to Ms D during her most recent interviews with the children, to which I will refer in more detail later in these reasons.
The mother put to Ms D that she had been biased against her as demonstrated by the report of a conversation with Ms E from the Department referred to in the Department’s notes dated 10 June 2015 where it was reported as follows
Contact with FLC-family consultant-her assessment is that the mother has made false allegations and that the father will lose contact with his children as he will no longer be able to cope with the stress from the mother.
Although, as the mother put to Ms D, Ms E did say that this is what Ms D had said to her and Ms D could not remember in detail her conversation with Ms E, I also accept Ms D’s evidence that this conversation took place in the early stages of her assessment when she was grappling with a large volume of information, that any comment she had made was part of a discussion where she was attempting to clarify her concerns and that she had, at the time of that conversation, not formed any concluded view.
My observations of Ms D’s evidence did not suggest any bias towards the mother. To the contrary, I am satisfied that she had carefully assessed the information she was given by the parties themselves or that she had access to, had observed both parties and the children and that her recommendations were well founded. That being said, Ms D readily made concessions when it was in my view appropriate to do so. This included conceding, as had Dr J, that of course one could not say with absolute certainty that the father had not physically and emotionally abused the children or sexually abused B. However, that did not alter her views about the father and the mother and the potential risk to the children they each presented.
Neither the opinions expressed in her reports, in particular her most recent report, or her recommendations, were undermined by cross examination and if anything as submitted by counsel for the father, her position was “fleshed out and was better explained” in the course of cross-examination.
Ms D’s evidence was thoughtful and considered. I found her to be a cogent witness and her lengthy involvement with this family and in particular the children, provided me with considerable insight into the personalities of the parties and the children, the dynamics of their relationships and the issues in this case and was of considerable assistance to me.

Proposals of the Parties

Both the father and the mother amended their proposals during the hearing. The mother initially proposed that the children spend no time with the father. However, during the hearing the mother proposed that if the Court were to find that the father presented an unacceptable risk of abuse to the children that C continue to spend supervised time with the father and B have a choice as to whether or not she should spend supervised time with the father.
The mother’s proposal, if the Court were to find that the father does not present an unacceptable risk of abuse to the children, was that the children remain living with her and spend time with the father alternating on a fortnightly basis from Saturday 10:00 am to 12:00 pm and Wednesday from 3:30 pm to 5:30 pm for six weeks. Thereafter, on an alternating fortnightly basis, the father spend time with the children in week one from 3:30 pm to 7:00 pm on Wednesday and in week two from 10:00 am to 3:00 pm on Saturday. This approximates to eight and a half hours a fortnight. The mother proposed the children spend time with each respective parent on Mother’s and Father’s Day from 10:00 am to 3:00 pm and on religious observances as agreed.
Although the mother found it difficult to make a proposal for time in the event that the Court were to order that the children live with the father she eventually proposed that the children spend each weekend from after school on Friday until the commencement of school on Monday and from after school each Wednesday until after school on Thursday with her. When pressed as to how this proposal would work she then amended her proposal to provide for the children to spend each alternate weekend with her as well as each Wednesday after school until Thursday morning. She also proposed shared time with the father on the children’s birthdays and that the children spend Christian celebrations with her and alternative religious celebrations with the father.
The mother also sought an order that the children remain on the Airport Watch List as she submitted India is not a signatory to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the “Hague Convention”) and she had serious concerns that there was a risk that the father would not return with the children to Australia if they were permitted to travel to India.
The father proposed that he have sole parental responsibility for the children and that they live with him. He also proposed that for a period of three months the children spend no time with the mother or her maternal family and thereafter for a further period of three months the children spend supervised time with the mother at F Contact Centre. At the commencement of the hearing, the father proposed that after three months of supervised time, the children spend alternate weekends and Wednesdays with the mother. However, having heard the evidence the father amended his proposal to provide that the mother be required to engage with a psychologist or counsellor as recommended by Ms D. It was his case that the mother be at liberty to apply for family dispute resolution or make an application to the Court with respect to the children spending further time with her subject to her having engaged in the recommended counselling or therapy.
The father’s alternate proposal, if the children were to remain living with the mother was that the children spend each alternate weekend with him, each Wednesday from the conclusion of school until 7:30 pm, one half of each short school holiday period and from 27 December until 17 January during the long summer holiday period. He also proposed that the children spend religious celebrations with him and Christian celebrations with the mother. Finally it was his case that he should be at liberty to travel overseas with the children during the school holidays.

Legal Principles

Each of the parties in this case is seeking parenting orders. The Court’s paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings (s 60CA of the Family Law Act 1975 (Cth) (“the Act”). In determining what orders would be in the children’s best interests, the Court must follow the legislative pathway in the Act and have regard to the primary and additional considerations in s 60CC of the Act. Murphy J in Harridge and Anor & Harridge and Anor [2010] FamCA 445 at [35] described these as the “signposts or touchstones within which the broad enquiry as to best interests must be conducted.” These considerations are consistent with the objectives of Part VII of the Act in s 60B, the primary considerations mirroring the first two of those objectives.
When conducting an enquiry as to what orders will be in the children’s best interests, the Court must give greater weight to the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence when it applies the primary considerations in s 60CC(2). The fact that a case involves allegations of abuse whether that is physical, sexual, psychological or emotional does not alter the Court’s obligation to determine what is in the child’s or children’s best interests and that it is those best interests that are the paramount consideration when making parenting orders. The High Court said in M v M (1988) 166 CLR 69 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) (“M v M”) at [76], “[v]iewed in this setting the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interest of the child”.
The “unacceptable risk” test in M v M is the standard applied by the Court to balance between the risks to the children of abuse and the benefits to the children of a meaningful relationship with each parent and in particular the parent who it is alleged has abused that child or children. Abuse is defined in s 4 of the Act as:
abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
In Mulvany & Lane (2009) FLC 93-404 May and Thackray JJ said the following at [76-77]
It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests. (Emphasis in original)
It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. …
Although the Court is required to take into account all of the relevant considerations, it is the allegations of abuse that are in this case pivotal to securing the outcome that will most likely promote the children’s best interests. In this case, as is commonly the case, the evidence in relation to the alleged abuse is not only relevant for the purposes of protecting the children from physical or psychological harm as a result of exposure to abuse but also informs the Court’s consideration of the other relevant factors in s 60CC.

Section 60CC Considerations

Allegations of Verbal and Physical Abuse

I propose to turn first to the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Whilst much of the focus in this case has been on the allegations of sexual abuse it is also the mother’s case that both she and the children were subjected to verbal, physical and emotional abuse by the father both during the relationship and following separation prior to the Court making orders that the children spend time with the father.
According to the Department’s Report dated 14 December 2015 provided to the Court pursuant to s 69ZW of the Act (Exhibit ICL1) (“Section 69ZW Report”) there was a notification to the Department on 27 September 2013. The Department with respect to this notification said as follows
On 27/9/2013 a report was received which raised concerns that the mother [Ms McDonald] was fearful of the father, [Mr Choudhary]. The information suggested that [Ms McDonald] was fearful given that she had a belief that in India women can ‘disappear easily’ and as such [Ms McDonald] had removed knives from her home in fear of what [Mr Choudhary] may do. [Ms McDonald] was also fearful given that the father had been diagnosed with depression. Concern was also raised that [Ms McDonald] was fearful of allowing [Mr Choudhary] to have contact with the children given that he had hurt them during play.
Follow up indicated [Mr Choudhary] was accessing appropriate supports in relation to his diagnosis.
The information in relation to [Mr Choudhary’s] depression did not indicate that his presentation or functioning was posing a significant risk harm [sic] to the children. The reported concerns also indicated the father had been hurting the children by biting, pushing and pinching them. The information however indicated that the father had undertaken such actions within the context of play. There was no indication that the children had sustained any significant injury and as such limited information to suggest that the children had suffered significant harm.
[Ms McDonald] was also engaged with appropriate supports such as counselling. It was reported the couple separated in September 2013. There appeared to be insufficient evidence to allow child protection to intervene in [Mr Choudhary’s] contact with the children, or the mother’s residency of the children at the current time. A decision was made for case closure.

It would appear according to the other evidence upon which the mother relies, that this notification to the Department was made by Ms N, a clinically accredited counsellor the mother was seeing in 2013.
The mother also deposes to having made a number of reports to the Department in relation to the alleged verbal, physical and emotional abuse, all of which, as submitted by counsel for the father, were made after the father initiated proceedings in this Court seeking orders for the children to spend overnight time with him and prior to 27 April 2015 when the mother obtained an Intervention Order which also suspended the children’s time with the father.
In the Section 69ZW Report, the Department reported with respect to the first of these reports as follows:
This report pertained to the safety and well-being of the children while having contact with their father. Information suggested the children and mother have been subjected to the [sic] [Mr Choudhary’s] aggression. [Ms McDonald] stated that she was never physically harmed, but there had been verbal and emotional abuse. It was reported [Mr Choudhary] was seeking overnight access and the matter was due to be heard in the Family Law Court on 26/11/2014.
Reported information suggested that [B] had returned from a recent access visit with a bruise and said her father had dropped her from his shoulders, resulting in the bruise.
SOCIT Police were informed of the reported information but did not investigate the matter.
Child Protection received a second report was received [sic] reiterating the same information provided in the initial report. The second report provided vague, third hand information. The second reporter noted that [B] had not been observed to present with any bruising.
A support/safety plan was developed with the family’s doctor, [Ms McDonald’s] mental health nurse and [O] family support service, to provide ongoing support to [Ms McDonald] and the children. The doctor and mental health nurse were aware that should there be any future presentation of a physical injury to either child, then Child Protection would need to be notified.
Case closed at intake.
The next intake report was dated “27/11/2014-10/12/2014”. The Department reported as follows
On the 27/11/14 Child Protection received a report raising concerns in relation to the safety and well being of the children while in the care of their father. It was alleged that [Mr Choudhary] would expose the children to inappropriate physical discipline, including biting the children to their arm, elbow, and finger and anywhere on their body; pinching and pushing the children and push the children off of the bed onto the floor and into the doorframe. It was further alleged that [Mr Choudhary] had recently dropped [B] from his shoulders onto the floor where she sustained a bruise to her leg and that he would yell at the children and at [Ms McDonald] in front of the children.
It is noted that the reported concerns are consistent with the most recent report closed at Intake in October 2014. At that time follow up occurred with [O] family support who confirmed that they were due to commence counselling with [B] and they would be in a position to monitor her and contact Child Protection if future protective concerns were identified.
This decision was made given that the reported concerns have not been verified by professionals in the previous report and there is no new information in this report which required further investigation by Child Protection. Further to this the family were well supported by professionals who are aware of the historical concerns and were in a position to report any new protective concerns to Child Protection.
Case closed at intake.
There was a further intake report dated 27 February 2015 which referred to the mother’s allegation that the father played music with the lyrics “I’m going to kill you” which she felt could be interpreted as a threat to kill the children. The Department reported that “[B] was being supported by a private psychologist and the family General Practitioner as well as school, indicating a high level of professional monitoring.” The case was similarly closed at intake.
On 24 April 2015 the Department received a report that B had disclosed to the mother that the father had punched her in the face during a recent visit. Although the Section 69ZW Report referred to B being interviewed by Suburb P SOCIT on 25 June 2015 it is the mother’s evidence, which is also consistent with the other evidence, that this interview was conducted on 25 April 2015 immediately following the notification. I am satisfied that the interview was conducted on 25 April 2015 not 25 June 2015.
The notes of that interview were in evidence before me and indicate that when B was asked whether the father had done anything that upsets her, she said that he had punched her once. However when further questions were asked with respect to the context of how this had occurred she was reported to have described the incident in the following terms
...[B] stated that she was sitting on the bed playing a teddy bear game on the phone where you have to punch the teddy bear. Father was there watching it with her then he punched her, she thinks he was copying the teddy bear in the game. She said stop it and walked off, she was a bit scared, she thinks he was playing, he has never done anything to upset or hurt her before and she is happy to keep going to father’s and stay the night with him.
SOCIT did not conduct a Visual and Audio Recording of Evidence (“VARE”) interview and did not take any further action.
In the summary of the Department’s investigation it was reported as follows:
A decision was made by Child Protection to close the case given there was no current injury; the accident occurred in March, the incident appeared to be within the context of a game, the child was not scared to return to see her father and SOCIT Police would not be taking any further action.
On 27 April 2015 after the Department had made its decision to close its file the mother applied for and was granted an interim Intervention Order by the Magistrates’ Court of Victoria at Suburb Q naming both herself and the two children as protected parties. The order made that day suspended the parenting orders made by the Federal Circuit Court on 12 February 2015 for 21 days. That application was set down for a contested hearing on 22 June 2015.

Allegations of Sexual Abuse

It was the day after the mother applied for and obtained an interim Intervention Order which suspended the orders for the children’s time with the father that the mother alleges B first disclosed to her that she had been sexually abused by the father. Ms D described the allegations of abuse as “chilling”. The allegations were of such a nature that if they were true, they would have been serious sexual assaults. Ms D’s description of the allegations in those circumstances is apt.
The mother deposed in her Trial Affidavit as follows:
v.[B] said words to the effect of, Things are getting harder and harder with dad.” I said words to the effect of, “What do you mean? Is there anything that you want to tell me, that your dad has told you not to tell me about?”
w.[B] said words to the effect of, “Dad put his finger inside my bottom.” I was shocked. I said words to the effect of, “In your bottom hole” [B] said words to the effect of, “Yes”. [B] demonstrated what happened with her body.
x.I observed [B] sit on all fours, she pulled her undies down and she pointed her pointer finger with force towards her bottom repeatedly, demonstrating to me how her father had put his finger inside her bottom. I said words to the effect of, “He put his finger all the way inside the hole?” [B] said words to the effect of, “Yes”. She nodded her head.
y.I said words to the effect of, “Did dad put his pee pee (penis) inside your bottom hole?” [B] said words to the effect of, “Dad tried but his pee pee wold not fit.” [B] then demonstrated what happened.
z.[B] showed me how she was bending over the edge of her father’s bed. [B] said words to the effect of, “I was picking up my teddy that had dropped on the floor.” [B] said words to the effect of “When I was bending down to pick up my teddy, dad pulled my undies down and tried to put his pee pee in my bottom, but it would not fit.” [B] said words to the effect of, “I grabbed my teddy and went and hid under dad’s couch.”
aa.I said words to the effect of, “You must have been very frightened. What happened next?” [B] said words to the effect of, “Dad went to the toilet and when he finished he [sic] came to find her.” [B] said words to the effect of, “Dad said, come out [B], come out [B].” [B] said words to the effect of, “Dad was not strong enough to lift the couch.” [B] said words to the effect of, “That she stayed under the couch with her teddy.”
bb.I said words to the effect of, “Did dad do anything else that he told you not to tell anybody about?”
cc.[B] then said words to the effect of, “Dad tapped his pee pee (penis) around my mouth.” [B] demonstrated with her finger how her dad tapped his penis around the outside of her mouth. [B] said words to the effect of, “Dad was trying to get it (his penis) inside my mouth but I kept my mouth closed so that he could not get it inside.”
dd.I said words to the effect of, “Did your dad put his pee pee in your private parts.” I saw [B] sigh an enormous sigh and take a deep breath before she answered. [B] said words to the effect of, “Yes”.
ee.[B] said words to the effect of, “Dad touched my private parts on the outside, it was like he was playing a piano.” I said words to the effect of, “Can you show me what you mean?” [B] demonstrated by lying on my bed with her legs open showing me how her dad had moved his fingers across her private parts on the outside part, moving her fingers like she was playing a piano.
ff.[B] said words to the effect of, “Dad put his finger inside my private parts.” I said words to the effect of, “Inside the hole.” [B] said words to the effect of, “It felt like he scratched her [sic] very badly on the inside of her [sic] private parts.” I said words to the effect of, “That must have really hurt, you must have been very frightened.” [B] said words to the effect of, “It hurt a lot, there was so much blood.” “I was scared.”
gg.I said words to the effect of, “Did dad put his pee pee inside your private part hole?” [B] said words to the effect of, “He first put his pee pee in half way and then he put his pee pee in all the way.” [B] said words to the effect of, “It felt like he poked a hole inside my tummy.” [B] said that she cried. [B] said words to the effect of, “There was so much blood, I was very scared.”
hh.I said words to the effect of, “You must have been very frightened.” [B] said words to the effect of, “Dad put his pee pee in so far, that it felt like he put a hole inside her” [sic]. I said words to the effect of, “Did dad lie on top of you?” [B] said words to the effect of, “Yes he lied on top of me for about 5 minutes”. I said words to the effect of, “Was dad moving while he lied on top of her” [sic]? [B] said words to the effect of, “Yes.” [B] demonstrated a movement where she moved her body from side to side.
ii.[B] said words to the effect of, “When dad had finished there was so much blood, that my undies were covered in blood.” I said words to the effect of “What happened next?” [B] said words to the effect of, “I went to the bathroom to clean up the blood off my body with some toilet paper and I wiped away all the blood off my privates.” [B] said words to the effect of, “I went to the toilet because I wanted to do a wee but no wees came out.” [B] put her head in my lap and I comforted [B], I said words to the effect of, “I am so sorry this happened to you.” “I am so sorry.”
The mother then deposed that “[B] put her head in my lap and went quiet. I hugged [B] and we both sat in this position for a few minutes. I was in shock. I comforted [B] the best I could.”
She also deposed that on that same day, after she said B had disclosed to her that she had been sexually abused by the father, C said words to the effect of, “dad punched me in the tummy and kicked me in the chest” and that both children had told her that the father had “...put hot food on their legs whilst on unsupervised access visits and that their father scratched them down their legs with his nails, leaving marks” which she said she also reported to the Department.
The mother also said that later the same evening she overheard B describing the father’s penis during a conversation with C. She said that B had said words to the effect of, “dad’s pee pee (penis) is huge, it is about this big and it is really fat”. She said that B demonstrated the size of her father’s penis with her hands. The mother said C replied with words to the effect of, “My pee pee is this big” and that he tried to show B his penis to which she said words to the effect of, “Your pee is small, Dad’s pee pee is really big, it is huge.”
The mother also deposed in her Trial Affidavit at paragraph 35(ll) as follows:
…
On 30^th April 2015 [B] said to me words to the effect of, “It’s disgusting.” I said words to the effect of, “What’s disgusting?” [B] said words to the effect of, “Dad went to the toilet and when he came back he tried to put his pee pee in my mouth and there was wees (urine) on the end of it.” “It’s disgusting.”
On 20^th May, 2015, at bedtime, [B] said words to the effect of, “Dad put his pee pee (penis) half way into my private parts and then all the way. There was so much blood, I took my undies off. I cried because it hurt so much.”
…
The mother deposed that on 28 April 2015 after the children went to sleep she told a friend from her church about the disclosures the children had made to her and that her friend advised her to call the police and to report the matter to the Department, which she then did. The Department in its report to the Court described the alleged disclosures having occurred when the mother was putting B to bed and that C had also been in the room at the time.
The Department reported that SOCIT had scheduled a VARE interview for B in relation to her alleged disclosure of sexual abuse but that the mother had not taken her to that interview. In any event B was interviewed by the Department on what I am satisfied is likely to have been 1 May 2015. Although the Department’s notes refer to an interview on 11 May 2015, that is not consistent with the other evidence. That interview took place at school. The Department’s report and notes indicate that B did not make any disclosures to the Department workers and nor did she “raise anything that could suggest any concerns.”
The Department’s notes also record the mother’s reaction following that interview to be as follows
Upon speaking to the mother, following [B’s] interview the mother was extremely concerned that [B] had not made a disclosure and wanted to know if this was normal for children who had been abused. Mother reported she had examined [B’s] vagina she stated ‘didn’t touch her’ she opened outer lips, what I saw that, the hymen or any skin, right up to the vulva, is gone and her vaginal opening appears bigger than last time I looked, opening is size of a 50c piece.” Mother was advised not to examine [B] again.
The mother was present during an interview conducted by Ms E who reported that B was sitting on her mother’s lap. At the commencement of the interview and this evidence was not challenged by the mother, the mother said to B as follows
You can talk, be brave. It is important to speak up, what mumma’s been teaching you, you can do it, you’re a brave girl, mummy loves you.
The notes also record that on occasions the mother answered for B and towards the end of the interview when B had not made any disclosures the mother said to B “It’s so so important, these ladies have come a long way, they really want to know what’s been happening at dad’s house” and to the workers the mother stated “[B] feels very embarrassed and very frightened”. When the workers asked B why the mother would think she was frightened, they described B as struggling to get off the mother’s lap and the mother holding on to her and pulling her back to face them.
The Department notes also record that “...it was apparent that mother was pushing [B] to make disclosure. However, CP did not gain any disclosures at all from [B], despite mother repeatedly encouraging her to ‘tell them everything’.”
The notes also record that following the interview with B and the mother the Department worker contacted Ms R, the principal of B’s school who advised as follows
...that there were ‘absolutely no concerns’ at all, about the presentation of [B]. Ms [R] reported, no disclosures and no concerns with regards to her behaviour and sounded genuinely shocked when the question was asked. [Ms R] did indicate that she was concerned about the mother, reporting that she presents at the school as overly “anxious” and that the mother often tells the teacher her concerns re: [B], seemingly in the hope that the teacher will make a report to DHS.
The Department also followed up with B’s counsellor Ms S at T counselling. The Department notes record the following
Ms [S] reported that she had seen [B] on 6 occasions and [B] had not made any disclosures regarding her Father/sexual abuse nor had there been any indicators that she will disclose anything. Ms [S] reported that she had spoken to [B] on the morning of the scheduled VARE and [B] sounded happy and said she “was great”. Ms [S] had concerns that the mother had asked for feedback after each session and how she had been when reporting the alleged sexual abuse despite graphically describing sexual abuse.
It is further noted in the Department’s records as follows
On the 6/05/2015, [B] did attend a MMS appointment; MMS found no medical evidence of any sexual abuse and highly recommended that Ms [McDonald] allow [B] to undergo a VARE with SOCIT Police.
On the 22/05/2015, [B] attended a SOCIT interview with her mother present. [B] made no disclosures regarding the allegations of sexual abuse. SOCIT Police reported [B] looked to her mother when the father was mentioned and [B] had stated that ‘Daddy was mean’ however, she was unable to elaborate. Following the interview SOCIT Police reported they had no intention of investigating further. With the approval of the Child Protection Principle [sic] Practitioner the case closed.
In December 2015 the Department requested further information from B’s school. The school reported that “while at school [B] is a happy little girl who enjoys school life.” It was also reported by the school that
[B] can be a confused little girl and it was believed Ms [McDonald] could be creating this anxiety for [B]. Ms [McDonald] had reported that [B] was having nightmares however [B] herself has not raised any concerns or said anything to staff that could be of concern.
In a Department case note dated 8 June 2016, the Department reported having again contacted B’s school and spoken to the principal. The Department worker noted in the Department’s report as follows
Mother is saying [B] does not want to [sic] school and as a result she is not attending school regularly
From the school’s perspective, as soon as mother leaves, [B] is excited to be at school, loves school and has a wonderful day
There are concerns are [sic] in relation to mother trying to demonstrate something that is not occurring which is why she says [B] does not want to attend school
There are no noted concerns academically or socially for [B] when she attends school.
The Department reported in summary as follows
There have been seven (7) reports to Child Protection since 2013 in relation to [B] and [C] with the most recent report closing in December 2015. Reports have raised consistent concerns about the children’s safety and well-being while on contact visits with their father. Reported concerns have pertained to allegations Mr [Choudhary] has been physically, emotionally and sexually abusing the children. The reports have been investigated by Child Protection and by SOCIT police and have not been substantiated.
At this time there is no evidence that the children have been physically, emotionally or sexually abused by their father and there is no evidence to suggest that Ms [McDonald] has emotionally harmed the children due to the serious allegations she has made.

The Department report went on, in my view somewhat prophetically that “...should the children continue to be subjected to the acrimonious relationship between the parents, then concerns could be raised in relation to the impact this could have on their ongoing emotional well-being”. At the time this report was prepared, the Department recommended that “...at this time Mr [Choudhary] should continue to have supervised contact with the children thus reducing the chance of any abuse occurring.”
It was the mother’s case that the Department had not properly investigated the matter and in so doing, had failed her and the children. I am satisfied, in particular, having heard Ms E’s evidence that the matter was properly investigated and the issue is likely not that the allegations were not properly investigated, but that the mother could not accept the outcome of that investigation.

Allegations of Abuse since the Commencement of the Father’s Supervised Time

On 20 July 2015 Judge Harland made orders for the children to spend supervised time with the father at F Contact Centre. The children did not start spending time with the father at F Contact Centre until 3 October 2015. The reports of that time are in evidence before me.
The children’s time with the father ceased again after their last supervised visit on 23 January 2016. The children thereafter did not spend time with the father until after further orders were made in this Court on 5 May 2016 which provided that they spend further supervised time with the father at his expense. This further supervised time commenced on 27 May 2016.
Both children spent supervised time with the father on one occasion and thereafter B refused to attend. C attended on two further occasions before he attended the appointments with Ms D on 8 August 2016 for the purposes of her most recent family report.
There have been four further occasions when C has spent supervised time with the father.
It is the mother’s case that notwithstanding that any time the children spent with the father after October 2015 was supervised, the children continued to be physically and emotionally abused by the father during that supervised time.
Ms U, Child Contact Supervisor at F Contact Centre annexed to her Affidavit what she described as the Observational Supervised Time Report dated 10 February 2016. That report included the following notes of the supervised visits:
·That at the conclusion of the first supervised visit on 3 October 2015 and after being advised by the worker that the children’s visit with the father had been fine, the mother asked to speak to the worker in private asking questions about B’s reactions to the father. When told that B had been comfortable and played games with both the worker and the father the mother commented that it would have been different if the workers were not in the room. The mother also asked the worker whether B had talked to the father and whether she had withdrawn from him at any point during the visit. The worker explained to the mother that it was not the practice to talk about everything that happens during a visit and that workers would usually only pass on things if there was a particular concern. The worker also told the mother that although C had made a few remarks about not wanting to spend time with the father, this was at odds with his behaviour;
·On 31 October 2015 the father was described by the worker as chatting to the children, “telling them it will be someone’s birthday during the next visit and asking them if they could guess who it was” to which B said “yours”. C then asked the father if they could get some presents and he laughed and told them it was not their birthdays;
·During the visit in late 2015 the father was reported by the worker to have told the children it was his birthday and that the children laughed. The father told the children it was okay when they told him they had forgotten his birthday and did not have either a present or a card.
It was also reported that on 10 November 2015, after only three supervised visits during which, based upon the workers observations, nothing of particular note had occurred, the mother made a complaint to the senior manager of the program that she did not believe the workers supervised the children’s time with the father vigilantly enough.
Ms U’s report also described an incident during the children’s time with the father on 14 November 2015 when C slipped and fell on the carpet during a game with the father. The worker looked at C’s knee which was bleeding slightly and asked him if he wanted a band aid. When another worker came in and asked C what had happened he said “Dad did it”. When the worker explained to the other worker that C had slipped while playing with his dad and it was an accident, C had said “No, he did it on purpose.” When the worker advised the mother of C’s fall and explained that it was an accident, C said to his mother that the father was a “Meany” and that he had done it on purpose. At the commencement of the children’s next supervised time the mother asked to talk to the worker about this incident expressing her concerns that the worker had dismissed what C had said about the father doing it on purpose and telling both herself and C that it was an accident. She explained that the father had a long history of hurting the children through play which was well documented by Child Protection.
The mother was also cross-examined about the incident during the time the children spent with the father supervised by Ms V on 27 May 2016. Ms V described the father and the children playing a game of chasey and tagging each other during which she said the father tagged B who
...fell onto her bottom from a squatting position. She looked up at the worker and said that her father had pushed her. The worker asked [B] if she was hurt and re-assured her that she was ok. [B] then leaped up and continued to run around. The worker assessed that [B] was not hurt nor was the incident observed as being forceful or intended by the father.
Notwithstanding this evidence, the mother’s initial position was that this was another example of the father physically abusing one of the children.
Finally there was the incident during Ms D’s observations of the children with the father in August 2016 when, after having asked C how his recent visit with his father had gone, he told her that the father had hit or punched him at each visit and more significantly that the father had punched him in the face during the observation session earlier that day. Ms D reported at paragraph 53 of her report as follows
When this was queried, given the writer had been sitting watching the entire encounter, he remained firm saying that the writer was looking at a piece of paper whilst his father did this. There is no doubt in this writer’s mind whatsoever that this had not occurred.
I am satisfied that there was no abuse as alleged by the mother during the children’s supervised time with the father. However these allegations of abuse are significant not just because of what they say about the children, but also because of what they reveal about the mother. As previously referred to, the mother cherry picked from the evidence generally and the myriad of documents produced pursuant to subpoena to support and bolster her case. It is also significant to the extent that, as Ms D observed in her most recent report, although the mother accepted unquestioningly what she said the children had told her “...she appears to find it difficult to accept information provided by the children to others as valid...”. The mother throughout her evidence and in submissions consistently discounted any information that did not fit with her narrative of the father and his abuse of the children.
The supervisor’s notes in relation to the time C has spent with the father since the interviews with Ms D also suggest that notwithstanding what C is described as saying to the father, which is at times both horrifying and offensive, or what the mother may believe he has done to the children, C is described as being settled and happy to spend time with the father. During supervised time on 19 August 2016 the supervisor noted that C “seemed to accept physical contact from [the father] and also reciprocated affection in the means of holding hands and putting his arms around his father on his own volition” and that the father was “loving and appropriate in his interaction with [C]”. The supervisor’s notes from later sessions repeat these views. The last session on 9 November 2016 was
observed to be of an extremely positive nature…[C] was seen having an absolute ball, laughing, joking and being in genuinely good spirits. [C] was observed to be relaxed, humorous and very well mannered towards his father. The interaction that was witnessed between father and son was truly wonderful to see.

Psychiatric Assessment of the Parties

The parties attended upon Dr I for the purposes of a psychiatric assessment. Those assessments were in evidence before me but Dr I was not required for cross-examination. Dr I in his report concluded in reference to both the father and the mother as follows
1.If one takes at face value the version of events provided by Ms [McDonald], then there would appear to be insufficient evidence to suggest that ongoing care by her of her children is contraindicated for psychiatric reasons. In her version, psychiatric disorder would not appear to be a significant factor with regard to her ability to provide a reasonable level of positive parenting and have her children live with her.
2.If one takes at face value the version of events provided by Ms [McDonald], it would necessarily follow that Mr [Choudhary] suffers from either a personality disorder, or significant problematic personality traits which have impacted significantly upon his relationship with Ms [McDonald] and the care of their children.
In particular, in Ms [McDonald’s] version of the events, she would not appear to have coached her daughter to accuse the father of sexual abuse. As has been described, Ms [McDonald] has provided documents reportedly voluntarily and readily produced by her daughter without significant encouragement from her mother. Therefore, it would necessarily follow from this version that Mr [Choudhary] poses a serious risk to his children, especially to his daughter, in terms of physical and sexual abuse. This would preclude any unsupervised time between Mr [Choudhary] and the children, indefinitely from a psychiatric perspective.
3.If one takes at face value the version of events provided by Mr [Choudhary], then there would appear to be insufficient evidence to suggest that ongoing care by him of his children is contraindicated for psychiatric reasons. In his version, psychiatric disorder would not appear to be a significant factor with regard to his ability to provide a reasonable level of positive parenting and have his children live with him or spend time with him unsupervised.
4.If Mr [Choudhary’s] version of the events is accurate, it would necessarily follow that Ms [McDonald] has suffered from long-standing problematic personality traits and low self-esteem, which have possibly caused her to manipulate her narrative of the previous relationship between her and Mr [Choudhary], as well as his behaviours towards their children; and to have consciously or unconsciously coached their daughter, in particular, to make extraordinary claims about their father, particularly the daughter’s having been sexually abused by her father.
In Mr [Choudhary’s] version of the events, this examiner would hold some concerns about Ms [McDonald’s] psychological fitness to have her children live with her or spend time with her unsupervised, given that it would necessarily follow that there would be a significant possibility of Ms [McDonald’s] further aggravating matters by continuing to psychologically damage her daughter, in particular.
Dr I quite appropriately noted that he had not seen the children and was unable to fully comment upon the dynamics of their relationships with the father and the mother, he was not an expert with regard to “establishing the factual truth of the events” and that this Court would hear the totality of the evidence and decide the issues involved.
Dr I did however say that the mother had demonstrated the possibility of more apparent psychopathology than the father whereas it was his evidence with respect to the father that “...there was nothing in particular within his history or examination to provide clues as to any kind of psychopathology on his part.”
He also said “...Ms [McDonald] acknowledged significant losses throughout her life, and longstanding self-esteem issues.” Dr I concluded that
she may well have dealt with these issues by becoming very controlled and controlling, particularly within her brief relationship with a man 10 years her younger, possibly even to the point of exaggerating or fabricating events in order to keep him out of her children’s lives as much as possible after he left her.
However Dr I also said that there was
...insufficient evidence to clearly demonstrate that she is suffering from a major degree of unresolved psychopathology. In particular there is insufficient evidence to completely convince the examiner that she has been the main cause of her daughter’s florid written documents, as opposed to dangerous and abusive behaviours on the part of the daughter’s father, notwithstanding that in that scenario he must have cleverly concealed the truth from this examiner.

History of the Mother’s Allegations

Having had the benefit of hearing the parties give their evidence and being cross-examined and having regard to all of the evidence and the other material upon which the parties rely, I am satisfied on the balance of probabilities that the mother is likely to be the cause of the children’s and in particular B’s florid allegations against the father whether that is intentional or a function of her belief that the children have been abused by the father.
As previously referred to, the Independent Children’s Lawyer submitted that I should accept that the mother genuinely believes that the father has emotionally and physically abused both children during the relationship and since she and the father separated and that he has sexually abused B. Ms D also said that it was her opinion that the mother believed that the children had been emotionally, physically and in B’s case, sexually abused. Counsel for the father submitted that whether the mother has intentionally influenced the children to make the allegations they now make and reject the father or genuinely believe they have been abused, the outcome is the same.
Whilst I accept that the mother now appears committed to her view that she was a victim of verbal, physical and emotional abuse during the relationship and that the children have been emotionally and physically abused and, in B’s case, sexually abused by the father that of itself gives rise to many questions with respect to the decision I must make. If the Court were to determine that the mother’s view is not soundly based, that would, as suggested by Dr I, likely demonstrate some psychopathology on the mother’s part.
Counsel for the father submitted, in my view with some force, that an analysis of the evidence demonstrates that although the mother now refers to what she says is a history of verbal, emotional and physical abuse over many years, or perhaps more correctly, what she says she now knows to be abuse, and the father deliberately and maliciously set out to hurt the children, these allegations do not always sit comfortably with the contemporaneous evidence or the evidence generally.
Counsel for the father in her closing submissions analysed the evidence with respect to that history and the mother’s allegations and those of the children in some detail. In my view that analysis illuminated the issues in this case and why these parties and the children now find themselves in their current circumstances.
It is common ground that when B was born in 2008 the parties were not living together, eventually moving in together in or about June 2009. Prior to the parties moving in together, the mother complained to the maternal child and health nurse on 2 December 2008 that she felt the father was “impatient” with B and that he complained about her crying so much. The mother annexed the notes of her attendances upon the maternal child and health nurse to her Reply Affidavit. As submitted by counsel for the father, there was no complaint about any family violence or abuse to either the mother or B during 2009 in those notes.
The parties separated for a period in early 2010 and it was during this period that the maternal child and health nurse notes record the mother having reported a history of verbal abuse. However the maternal child and health nurse also recorded that she had not observed any verbal aggression during a visit to the mother’s home. On 13 May 2010 the notes stated that the father was “now helping with settling children at night” and on 20 May 2010 the mother reported that he had been supportive since B’s birth.
Then on 1 July 2010 which similarly appears to be during that same period of separation, the mother was reported to have told Ms W of X Group that she had moved into her mother’s home after she left an abusive relationship with the father and that he was verbally abusive to both her and B and had difficulty coping with the child’s behaviour when she became tired and cranky, yelling at her and putting her down. She was also reported to have said that she never left the children unattended with the father and that approximately two weeks before, she had seen the father push B whilst she was on the bed causing her to fall off the bed.
Counsel for the father submitted, which I accept, that this allegation was not consistent with the way in which the mother later described this incident. During cross examination the mother conceded that she may have incorrectly described this incident in her Trial Affidavit however she also said that although the father may not have pushed B off the bed on this occasion, she had seen him deliberately push the children off the bed with the intention of harming them during 2012. It was put to the mother that notwithstanding her evidence that during 2012 the husband had been deliberately harming the children, she had allowed the children to spend unsupervised time with him. It was her evidence that she did not, at that time, know it was “abuse”.
The father and the mother thereafter were working towards a possible reconciliation and the mother does not rely upon and does not point to any allegation of either verbal or physical abuse during this period. To the contrary as submitted by counsel for the father, the Maternal and Child Health Nurse notes dated 4 April 2011 annexed to the mother’s Reply Affidavit suggest the father has been helping the mother care for the children, including caring for the children for five hours whilst the mother went out for a beauty treatment. The notes on this date also state that the mother reported the father had told her he will come over every Saturday for a few hours so she can get a break.
The next piece of evidence counsel for the father referred me to and which the mother relied upon was the note in the Maternal and Child Health Nurse records on 18 May 2012 that indicated the mother is “concerned about [Mr Choudhary’s] parenting, has difficulty controlling anger, will be verbally abusive, put [Ms McDonald] and children down, will use physical discipline at times, at other times is very loving and affectionate”. The mother is also reported as having said that she had organised a parenting class for the father but he had refused to go.
There is no further reference in the various documents relied upon by the mother with respect to the alleged “abuse” until mid-2013 when she started seeing Ms N, a clinically accredited counsellor. Ms N’s notes are in evidence before me. According to those notes Ms N saw the mother for the first time on 25 July 2013 at which time the mother said that after reading material given to her by Ms Y, who had referred her to Ms N, she realised “she had been in an abusive relationship.”

Notwithstanding the orders, B has now not spent any time with the father since 27 May 2016. Although C has continued to spend limited supervised time with the father, there have also been occasions when C has not spent time with the father in accordance with the orders. The fact that the mother was unable to ensure B’s regular attendance at school also does not give me any confidence in her ability to comply with any orders the Court might make even if she were committed to doing so.
Even if the Court were to make orders in accordance with the mother’s proposal, which one would normally expect she would be more inclined to comply with, that is not likely to be the situation in this case in circumstances where it is clear from her evidence that in her mind the children are victims of abuse and she has no capacity to reflect upon any other possibility. It is hard to see how in those circumstances the mother could ever encourage the children to spend time with the father, who she is convinced has not only abused them but is likely to do so again.
In cross-examination Ms D said that she thought even if B wanted to spend time with the father, that it was unlikely she would be able to express that to the mother and that it was much more likely that she would “continue to express to her mother what she believes her mother would want to hear”. She also said that the likely outcome if the children continued to live with the mother is that they would not spend any time with the father, irrespective of orders the Court may make for time with the father. Ms D said that although she could see the potential for the children to have a relationship with both parents if they were living with the father, she did not see any such capacity in the event they remained in the mother’s care. I am satisfied that that is the case.
Although the father had initially proposed that after the three month period of supervised time at F Contact Centre, the children should spend alternate weekends with the mother, at the commencement of the case he adopted Ms D’s recommendations that the mother’s future engagement be conditional upon her engaging in some therapeutic process. It is significant in my view and demonstrates the father’s commitment to the children having a meaningful relationship with both himself and the mother and it was only when he could see no other alternative, that the father amended his application to seek residence.
In my view orders placing the children in the father’s care offers the only real possibility for these children to have a meaningful relationship with both of their parents, albeit whether that can be achieved will be dependent upon the mother’s capacity to engage in therapy as Ms D recommends, to resolve past issues and gain insight into the impact of her behaviour upon the children.
Although I am not particularly confident that the mother has the capacity to reflect upon what has occurred, that she will fully or properly engage in the recommended therapy or that she is likely to gain the necessary insight into her behaviour, I am satisfied that the father is committed to the children having a relationship with the mother as long as doing so will not expose them to any risk. I am also satisfied that unless the mother is able to reflect upon the part she has played in the breakdown of the children’s relationships with the father and accept the possibility that the children have not been abused, that it is likely that she will continue to be a threat to their emotional and psychological welfare both in the short and long term.

Additional Considerations

Parties’ Capacity to Care for the Children, their Attitude to the Children and the Responsibilities of Parenthood

Whilst for all the reasons already discussed I have significant reservations about the mother’s parenting capacity, in particular her capacity to provide for the children’s emotional and psychological wellbeing, I am satisfied that she is able to provide for their physical needs and in the event that they ultimately spend time with her, she will provide appropriately for their physical care.
As pointed out by Ms D, the father’s capacity to care for the children’s needs is untested. In her first family report she said at paragraph 33 that the father
...has not done much of the ‘hands on’ parenting of his children. He therefore may lack some of the finer skills required for ongoing care for them should he continue to be involved in their lives.
Ms D having referred to the mother’s complaints about what she said was abuse referred to the father’s style of play and suggested that he might require “some additional support in parenting so that he ceases play that the children find difficult and he can learn to recognise when the children are no longer enjoying it.” The reports of the father’s interaction with the children during supervised time did not cause me to have any concerns about the father’s ability to care for the children or the nature of his interaction with the children.
Ms D referred in her second report to the father describing in her discussions with him “...actions that are child focussed such as setting up consistent routines and structures as well as expressing a level of confidence that he could manage the day to day parenting.” This was consistent with the father’s evidence during the hearing. Whilst the father’s capacity to care for the children may be untested, I am satisfied as referred to by Ms D, that there is no evidence or as she said information “...contra-indicating his ability to adequately care for the children.”
I am also satisfied that the father’s attitude to the children and his responsibilities as a parent has been entirely appropriate in what can only be described as extremely difficult circumstances. Although the father has not had the opportunity to participate in decisions about major long term issues, or for that matter short term issues and for some time has had only limited opportunities to spend time with the children, it was clear from his evidence that he has maintained his love and commitment to the children. Although the mother suggested that the father could be working harder and paying more child support, there is no evidence to suggest that he has not paid what he has been assessed to pay. I also accept the father’s evidence with respect to his change of jobs and his reasons for those changes.

Family Violence

On 27 April 2015 the mother applied to the Suburb Q Magistrates’ Court for an Intervention Order and an interim order was made on that date. The children were also named as affected family members for the purposes of that application.
The allegations the mother made in support of her application for an Intervention Order, albeit not exactly the same, are generally consistent with her evidence in this case. Although an interim order was made, I have significant reservations about that order, at least with respect to the mother, in circumstances where it was based upon a general assertion of concern for her own safety and lacked any particulars of those concerns. The application was also made in the context of the orders made by Judge Whelan for a move to overnight time and it was made after the same allegations had been investigated by the Department and the Department’s file had been closed.
The allegations are also not consistent with the way in which the children presented when interviewed by Ms D for the purposes of the Memorandum to the Court and she reported that even though the children expressed very negative views of the father when interviewed in June 2015 for the purposes of the first family report, B showed no “signs of distress” when in close proximity to the father and appeared to be in conflict as to whether or not to engage with him. She described C as, after some initial reticence, throwing himself into the father’s arms.
Having regard to all of the matters discussed earlier in these reasons, in particular with respect to the allegations of abuse, I am satisfied that the allegations made by the mother in support of her application for an Intervention Order are part of her rescripted version of the history of hers and the children’s relationships with the father and her narrative of abuse, which is directly related to the father having initiated proceedings seeking orders that the children spend overnight time with him. I am not satisfied on the balance of probabilities that either the mother or the children have been subjected to family violence as defined by the Act either during the relationship or since separation.
On 22 June 2015 the father consented to a final Intervention Order without admissions. That order continued until 9 November 2016 and the mother’s evidence is that she has applied to extend it.

The Likely Effect of any Changes in the Children’s Circumstances

The orders proposed by the mother would continue what are familiar arrangements for the children’s care. Although none of the mother’s family gave evidence, the mother’s evidence suggests that the children have a relationship with their maternal grandmother and other members of the mother’s family. I am satisfied those relationships are likely to continue if the children remain in the mother’s care.
The orders proposed by the father would involve significant change for the children in terms of not only their living arrangements, but also their cultural upbringing and relationships with the father’s family. The father is Indian. Although the children travelled to India with both the father and the mother on one occasion and the father’s parents have visited the father in Australia, the children have spent only limited supervised time with the father since April 2015 and on that basis, have had only limited exposure to the father’s family and his Indian heritage.
In circumstances where I am satisfied that if the children were to live with the mother it is unlikely that they would spend any time with the father, they are also likely to have little or no exposure to their father’s family or their cultural heritage on their paternal side. I am satisfied that if the children were to live with the father and spend time with the mother, albeit that may not happen in the short term, they would be able to continue their relationship with the mother’s family, spend time with the father’s family and experience the cultural heritage of both their parents. I note the father’s evidence was that his parents intended to travel to Australia to assist him in the event that orders were made for the children to live with him.
It is inevitable in circumstances where the children have been primarily in the mother’s care and, at least in the last two years, spent only limited time with the father, that a change of residence will present significant challenges for them. As a result of such a change, the children and B in particular would be living with the person she now appears to believe has both physically and sexually abused her. Ms D referred to the way forward if B has not been sexually abused as follows
...would be to be assisting her with professional support to remove it from the - the conversations – the day–to-day conversations so that she would have an opportunity to – to leave it to the side and –and move on from that. And that would need to be done with some level of care and concern and probably the assistance of a therapist who was independent to – to this matter to date, who could assist her moving through that. It’s never too late. But there – you know, there will – there will be a significant impact from – from this time. And – and she would need to do some work with somebody around it.
Although Ms D said it was never too late, she also said the sooner the better as it is important for B in particular to have the opportunity to move away from her mother’s narrative of abuse. I accept her evidence.
Ms D said that the children would need
…a lot of patience and care and stability, as much as possible. And so as much as possible –if-if it’s–if things could be–if the stability around their, you know-their schooling, for example, or anything that keeps them as secure as possible in their current environment could assist.
I am satisfied based upon the father’s evidence that he appreciates the challenges the children may face, has already given some thought to what they might require by way of counselling or therapy and that mindful of those challenges, it is his proposal that the children will continue to live in the same area as they presently live with the mother and will be attending the same school.
Ms D was asked about her recommendation that if the children were to live with the father, they should have no contact with the mother for a period of three months. It was her evidence that “all contact” would include telephone calls, letters and cards, not just face to face contact. Ms D said this was important because
it’s about giving the children an opportunity to settle with a very, very different – it would be a significant change for the children, and it’s about giving them opportunities to settle. There has been a very powerful–potentially a powerful discourse happening with their mother, and the children need an opportunity to develop a relationship with their father that doesn’t get affected by comments from their mother that could continue to undermine that relationship and continue to have the children reject, and the children need to settle, and unfortunately the only way I can see that occurring would be with no contact at all for a period of time.
Ms D also said that although one would usually say that it would be good for the children to have some capacity to contact the mother during the first three months, that would not be likely to be in their best interests in this case because it would take them “...back into a space that leaves them vulnerable to that level of influence that can then interrupt that settling period” and that “there has been a lot of sharing between mother and children, it would be unrealistic to expect that would suddenly stop, and therefore picking up on-there might just be questions or distress that the children tune into immediately.”

Making Orders that will Avoid Further Proceedings

Although I have no doubt that it would be in the children’s best interests for orders to be made that would avoid further proceedings, that may not be possible in this case.
Having heard his evidence I am confident that the father would probably accept whatever orders the Court makes, albeit not happily, given his concerns for the children’s welfare in the mother’s care, the breakdown in his relationship with B and the deterioration in his relationship with C. However it is also likely in my view, given the mother’s unwavering view that the children have been both emotionally, physically and in B’s case, sexually abused by the father that she would have great difficulty complying with any orders that the Court might make for the children to spend time with the father be it supervised or unsupervised time. That would likely result in contravention proceedings if not a further application by the father for orders that the children should live with him.
In the second family report Ms D said that she could not predict what lengths the mother might go to in order to protect the children from what she perceives to be the father’s abuse. When Ms D was asked in cross-examination to elaborate she said as follows
I guess it comes down to a level of concern I hold if things were not to go the way that she would hope they would go. And probably, I would have some concerns about whether she would – how she would deal with that herself. Whether that would be something that she might turn inward and cause some harm to herself, or whether she could continue with the proceedings. And I guess it’s just a concern that – and it’s based on the belief that if I believe that [the mother] really, really believes this then the obvious – almost-next step is that she would continue to fight for what she would see would be justice, because she would believe a wrong had occurred. And so, whether that was an external or an internal manifestation, it would be hard to imagine some sort of acceptance of that and capacity to work with somebody to move through this in a more productive manner.
Although I am hopeful that the mother will accept the Court’s decision rather than engage in further proceedings it may not be possible to avoid further proceedings in this case if she is unable to do so. Whilst that would be regrettable it is just one of the matters I must consider.

Parental Responsibility

When making parenting orders, as the Court is being asked to do in this case, there is a presumption that it is in the best interests of the children that the children’s parents have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of the children or family violence. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for those children’s parents to have equal shared parental responsibility. The definition of abuse in s 4 of the Act includes “causing the child to suffer serious psychological harm”. If the Court makes an order for equal shared parental responsibility, it must consider whether it would be in the children’s best interests and reasonably practical for the children to spend equal and if not equal, substantial time with each parent.
I have already found that I am not satisfied that the mother or the children have been subjected to family violence. However I am satisfied that in this case, there are reasonable grounds to believe that the mother is causing the children serious psychological harm and that in those circumstances, the presumption of equal shared parental responsibility does not apply.
I am in any event satisfied that whether or not the presumption applies, it would not be in these children’s best interests for the father and mother to share parental responsibility for them. Section 65DAC(2) of the Act provides that an order which requires two or more persons to share parental responsibility is taken to require the decisions about major long term issues to be made jointly and that this requires those persons to consult the other persons and to make a genuine effort to come to a joint decision (s 65DAC(3) of the Act). In circumstances where I am satisfied that the mother remains committed to her view that the children have been abused by the father, I am also satisfied that there would be no capacity for the father and the mother in this case to consult, or that there is any real prospect of them being able to come to a joint decision.
There are also practical difficulties with them sharing parental responsibility in circumstances where I am proposing to make orders that the children live with the father and not spend time with the mother for a period of three months, the mother’s time thereafter being supervised. Even after that three month period and the commencement of supervised time, the level of the mother’s involvement in the children’s lives will depend upon what insight she is able to gain as to the impact of her actions upon the children. I do however propose to make orders requiring the father to keep the mother advised of any major long term decisions he makes for the children and authorise the school to provide the mother with the children’s school reports.
In all of the circumstances, I propose to accede to the father’s application that he have sole parental responsibility for the children and in those circumstances, it is not necessary to consider whether it would be in the children’s best interests and reasonably practical for them to spend equal and if not equal time, substantial time with the mother.

Conclusion

Having weighed up all of the evidence and having had regard to the relevant s 60CC considerations, I am satisfied that it is in the children’s best interests to accede to the father’s application.

I have little doubt having observed the mother give her evidence and conduct her case that although she is aware of the possibility of the children being removed from her care, she seems to have no capacity to reflect upon how this could have been avoided and she is likely to have a great deal of difficulty coming to terms with the orders I propose to make. Although I have great sympathy for the situation the mother now finds herself in, I must do what I consider to be in the best interests of the children. In this case that is to remove them from the mother’s rescripting of their lives and her narrative of abuse.
I am also mindful that the children will miss their mother and although I have confidence in the father’s capacity to support the children through these changes, I am hopeful that she will engage in the recommended therapy so that she can play a meaningful role in the children’s lives.
In all of the circumstances I am satisfied that I should make orders that the children live with the father and that this will be in their best interests. I am also satisfied that I should, as recommended by Ms D, make orders for the children to not spend any time or communicate with the mother for a period of three months to allow the children the opportunity to adapt to their new circumstances. Ms D said in cross examination and I accept that the children have been part of a very powerful discourse with the mother and need an opportunity to develop their relationship with the father and that the benefits of being with the father might be undone by exposure to the mother and her discourse.
I also propose to accede to the application of the Independent Children’s Lawyer that the mother be restrained from attending at the children’s school. The mother gave evidence that she proposed at the conclusion of the case to seek employment and that she might seek employment near the children’s school. Ms D was asked for her views about the possibility of the mother working near the children’s school. It was her evidence that such an arrangement would be totally counterproductive for the children bringing them into “...contact with the conflict and the difficulties in the one environment that the children should have as an environment that’s really – is just about them.” I am satisfied that the mother being employed near the children’s school or attending at their school would be likely to undermine the arrangements the father makes for the children’s care and potentially their relationship with him and would not be in their best interests. This is at least until it is clear that the mother has gained some insight into the impact of her behaviour upon the children.
The father initially proposed that after three months the children should commence spending supervised time with the mother and after three months of supervised time and subject to the mother having treatment, that the children should start spending alternate weekends with the mother together with half the school holidays. Ms D was concerned about the impact this might have upon the children and it was her initial position, as set out in her second family report, that the mother spending supervised time with the children be subject to her engagement in personal counselling. During cross examination however, she departed from this position and it was her evidence that any move to unsupervised time should be subject to therapeutic intervention, with a view that the mother “change some of her ways of understanding the situation that could then lead her to a situation of being able to spend some time with the children unsupervised.” Ms D suggested the possibility of the Court making interim orders for the children to spend time with the mother. Counsel for the father however submitted that the Court make final orders for supervised time but that the mother, after having engaged in therapy as recommended, have liberty to apply with respect to unsupervised time absent any agreement.
Although I am aware that the children may not be able to spend supervised time with the mother at F Contact Centre indefinitely I am also not satisfied that it would be in the children’s best interests to make interim orders with respect to their time with the mother. The impact of the ongoing litigation upon these children is significant and I am satisfied that their interests will be best served by the certainty of final orders. I also do not propose to make orders requiring the mother to engage in therapy as I am satisfied that there is little point in the mother engaging in therapy unless she is committed to that process. It is really in the mother’s hands. I will, as proposed by the father, make an order requiring the Independent Children’s Lawyer in consultation with Ms D to recommend a psychologist or counsellor to the mother. Although I am hopeful that the mother will adopt that recommendation, I do not propose to require the mother to engage the psychologist or counsellor that has been nominated because if the mother is to gain the benefit of therapy or counselling, it will ultimately need to be with a psychologist or therapist in whom she has confidence.
I have found that I am satisfied that the father is likely to promote the children’s relationship with the mother assuming he is satisfied that the mother has gained some insight into her behaviour and its impact upon the children. I am satisfied that in those circumstances, if the mother does engage in therapy, that the parties may be able to, with some assistance, reach agreement with respect to a move to unsupervised time. In the event that they cannot reach agreement the mother will be at liberty to apply to the Court with respect to the children spending unsupervised time with her, the outcome of that application likely being dependent upon her being able to demonstrate to the Court that she has not only sought assistance, but that she has also gained some insight.
I propose to continue the appointment of the Independent Children’s Lawyer for a further six months on the basis that hopefully during that period the mother will have commenced therapy and be able to demonstrate that she has developed the necessary insight into the impact of her behaviour on the children.
Finally I propose to accede to the father’s application that he be permitted to travel overseas with the children and that the watch list order be discharged. I am satisfied it is in the children’s best interest that they be permitted to travel overseas with their father and to have the opportunity to spend time in India with the paternal family. While India is not a signatory to the Hague Convention, I accept counsel for the father’s submission that there is no evidence to suggest that the father is not committed to living in Australia or that if permitted to travel to India, he would not return to Australia with the children. The father has lived and worked in Australia since before the parties commenced their relationship. He has also travelled to India on two occasions, the first occasion being when he and the mother travelled to India with the children and on a second occasion in late 2014 just after initiating these proceedings. He has returned to Australia and taken up his life in Australia on each occasion.

I certify that the preceding two hundred and twenty five (225) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 7 April 2017.

Associate:

Date: 7 April 2017

[2017] FamCA 214

7 April 2017

Key Legal Topics

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Family Law

Civil Procedure

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Appeal

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Injunction

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